United States District Court, D. South Carolina, Rock Hill Division
ORDER AND OPINION
matter is before the court for review of Defendant James M.
Johnson's (“Defendant”) Motion to Change
Venue filed on May 25, 2018. (ECF No. 10.) Plaintiffs Nathan
Chick and Sarah Lightbody (collectively
“Plaintiffs”) vigorously opposed Defendant's
Motion on June 11, 2018. (ECF No. 12.) Defendant replied to
Plaintiffs' opposition on June 12, 2018. (ECF No. 13.)
For the reasons stated herein, the court
GRANTS Defendant's Motion.
FACTUAL AND PROCEDURAL HISTORY
filed their Complaint against Defendant on March, 23, 2018.
(ECF No. 1.) In their Complaint, Plaintiffs allege that
Defendant was negligent when he operated a motorboat at a
high rate of speed and caused them to collide with him on
Lake Wylie, a body of water that is in North and South
Carolina (ECF No. 12 at 3). (Id. at 2-3.) Defendant
was personally served, in South Carolina, with the Complaint
on April 16, 2018. (ECF No. 5.) On May 25, 2018, Defendant
filed his Motion to Change Venue. (ECF No. 10.) In his
Motion, Defendant moved to change venue because “the
incident occurred in North Carolina, the case was
investigated by [the] state of North Carolina, the treating
physicians are in North Carolina, and the majority of the
witnesses are residents of North Carolina.”
(Id. at 1.)
11, 2018, Plaintiffs filed their Response in Opposition to
Defendant's Motion to Change Venue. (ECF No. 12.)
Plaintiffs argue that venue is proper in the District of
South Carolina because in admiralty cases, “venue is
proper in any district where process can be made upon the
defendants.” (Id. at 2 (quoting Campbell
v. Johnson & Towers, Inc., 123 F.Supp.2d 329, 338
(D.S.C.)).) In other words, Plaintiffs submit that “the
rules of venue [are] more liberal in admiralty
actions.” (Id.) Additionally, Plaintiffs
forcefully maintain that Defendant's Motion fails to
establish that a transfer of venue is proper, and he has
failed to carry his burden. (Id. at 3-4.) Plaintiffs
request that the court deny Defendant's Motion.
25, 2018, Defendant, replying to Plaintiffs, filed his
Memorandum in Support of Defendant's Motion to Change
Venue. (ECF No. 13.) Defendant argues that his Motion should
be granted because the accident was investigated by the North
Carolina Wildlife Resources Commission and the North Carolina
Police Department, material witnesses are outside of South
Carolina, Plaintiffs are residents of Charlotte, North
Carolina, and North Carolina courts are better suited to
apply the substantive law of North Carolina. (Id. at
1-3.) Moreover, Defendant alleges that the actual accident
took place in North Carolina, not South Carolina.
(Id. at 3.) Defendant asks the court to grant his
Motion. (Id. at 3-4.)
federal court is required to have personal jurisdiction under
the Due Process Clause. See Foster v. Arletty 3
Sarl, 278 F.3d 409, 413 (4th Cir. 2002) (citing Ins.
Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee,
456 U.S. 694, 702 (1982)). Generally, unless personal
jurisdiction is challenged in a pre-answer motion or in the
answer itself, it is deemed waived. Fed.R.Civ.P. 12(h).
See also Bethlehem Steel Corp. v. Devers, 389 F.2d
44, 45-46 (4th Cir. 1968) (“Since the appearance must
be deemed authorized and since no attack on personal
jurisdiction was made in a pre-answer motion or in the answer
itself, the defense of lack of jurisdiction over the person
is waived.” (citation omitted)). When a defendant fails
to raise the issue of personal jurisdiction, the defendant
consents to the court's exercise of personal
jurisdiction. See Foster, 278 F.3d at 413.
instant case, Defendant filed his Answer on May 25, 2018.
(ECF No. 10.) In his Answer, Defendant failed to challenge
the court's personal jurisdiction over him. (See
id.) Therefore, the court may exercise personal
jurisdiction over Defendant because he has waived this
specific defense. Fed.R.Civ.P. 12(h). Moreover, even if a
challenge existed, the court would likely possess personal
jurisdiction over Defendant because he is a resident of South
Carolina (ECF No. 13-1 at 3) and was properly served with the
Complaint in South Carolina (ECF No. 5). See Fed. R.
Civ. P. 4(e). See also 4A Charles Alan Wright et
al., Federal Practice and Procedure § 1069.5 (4th ed.
2018) (“[T]he paradigm forum for an individual is his
or her state of domicile. . . . An individual can be subject
to jurisdiction when he or she is served with process while
physically present in the forum state.”).
jurisdiction “involves a court's power to hear a
case” and may never be “forfeited or
waived.” United States v. Cotton, 535 U.S.
625, 630 (2002). Under 28 U.S.C. § 1333(1), district
courts have original jurisdiction for “[a]ny civil case
of admiralty or maritime jurisdiction . . . .”
Generally, in order for a court to properly invoke §
1333(1) for a tort claim, a plaintiff “must satisfy
conditions both of location and of connection with maritime
activity.” Gossett v. McMurtry, 764 F.Supp.2d
782, 784 (D.S.C. 2010) (citing Jerome B. Grubart, Inc. v.
Great Lakes Dredge & Dock Co., 513 U.S. 527, 534
(1995)). To satisfy the location test, a court must
determine, “whether the tort occurred on navigable
water or whether the injury suffered on land was caused by a
vessel on navigable water.” Jerome B. Grubart,
513 U.S. at 534. The connection test requires the court to
assess whether the incident had a “potentially
disruptive impact on maritime commerce” and a
“substantial relationship to traditional maritime
activity.” Gossett, 764 F.Supp.2d at 784
(quoting Jerome B. Grubart, 513 U.S. at 534).
Admiralty jurisdiction generally extends to injuries
involving recreational vessels. See also Oliver by Oliver
v. Hardesty, 745 F.2d 317, 319-20 (4th Cir. 1984)
(holding that a district court possessed admiralty
jurisdiction when a defendant allegedly engaged in a
negligent operation). See also Ray v. Lesniak, 294
F.Supp.3d 466, 481 (D.S.C. 2018) (“Admiralty
jurisdiction extends to injuries involving recreational
vessels such as the Celadon.”); Mahony v.
Lowcountry Boatworks, LLC, 465 F.Supp.2d 547, 550-54
(D.S.C. 2006) (holding that the court possessed admiralty
jurisdiction when a plaintiff alleged that a defendant was
negligent prior to placing a vessel in the water, and the
incident had a potentially disruptive impact on maritime
brought the instant suit against Defendant after a boat
collision with him on Lake Wylie. (ECF No. 1.) Plaintiffs
specifically allege that Defendant caused the collision and
was negligent in the operation of his vessel. (Id.
at 3-7.) Given that the boating accident occurred on Lake
Wylie, the alleged tort must have occurred on navigable
waters. See Jerome B. Grubart, 513 U.S. at 534
(holding that the location test was satisfied when a company
allegedly caused a flood involving the Chicago River).
See also Hartman v. United States, 522 F.Supp. 114,
116-117 (D.S.C. 1981) (“This [c]ourt holds Lake Wylie
is susceptible of being traversed by commercial craft between
states and is therefore navigable for purposes of invoking
admiralty jurisdiction.”). Therefore, because the
accident occurred on navigable waters, the location test is
satisfied. See also Oliver by Oliver, 745 F.2d at
319-20. The accident between Plaintiffs and Defendant also
has a connection to maritime activity. See Id. at
320 (“The negligent operation of the defendant's
vessel bears a significant relationship to traditional
maritime activities.”); Kelly v. United
States, 531 F.2d 1144, 1147 (2d Cir. 1976)
(“[A]dmirality jurisdiction has been upheld in a
variety of recent cases involving pleasure boat accidents.).
See also Ray, 294 F.Supp.3d at 481 (“[B]eing
struck by the main sheet of a racing sailboat has a
connection to maritime activity.”); Schumacher v.
Cooper, 850 F.Supp. 438, 447 (D.S.C. 1994)
(“Personal injury negligence actions arising from a
collision between a pleasure boat and a swimmer on a lake in
South Carolina are within the admiralty jurisdiction of this
court.”) (citations omitted); Hartman, 522
F.Supp. at 119 (“This [c]ourt concludes that the
collision here involved, between a vessel in navigation and
an abandoned bridge piling, is just as much a traditional
concern of admiralty . . . .”). But see Souther v.
Thompson, 754 F.2d 151, 153 (4th Cir. 1985)
(“Unlike Foremost and Oliver, the
controversy in this case does not arise out of an alleged
navigational error such as occurs when a pleasure craft
collides with a swimmer, water skier, reef, or another
vessel. In his complaint[, ] K. Souther failed to make any
factual allegations that the operator of the boat had
violated a navigational rule.”). Accordingly, the court
has subject-matter jurisdiction over this action pursuant to
28 U.S.C. § 1333, and the court's admiralty
jurisdiction is properly invoked. See Sisson v.
Ruby, 497 U.S. 358, 364-65 (1990).
STANDARD OF REVIEW
28 U.S.C. § 1404(a), “a district court may
transfer any civil action to any other district or division
where it might have been brought . . . .” A change in
venue is “[f]or the convenience of [the] parties and
witnesses” and “in the interest of
justice.” 28 U.S.C. § 1404(a). “A section
1404(a) transfer merely involves a discretionary change to
another district where the action could have been
brought.” Gower v. Lehman, 799 F.2d 925, 927
(4th Cir. 1986). Therefore, a district court's ...